State v Ali [2010] FJHC 229; HAC014.2010 (30 June 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 014 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

ZAFIR TARIK ALI
TAIMUR ALI
TAHIR ALI
CHANDLESH GANESH
ACCUSED PERSONS

Counsel: Ms. Cokanasiga J. - For State
Mr. Raza M. - For All Accused Persons

Date of Hearing: 9/6/10; 10/6/10; 11/6/10; 15/6/10; 16/6/10;
21/6/10; 22/6/10; 23/6/10; 24/6/10; 28/6/2010.

Date of Ruling: 30th June, 2010.

RULING

The four accused persons are charged for murder of James Shankaran Nair. At the end of the case for the prosecution, Defence made an application on the basis that there was no case to answer in terms of Section 293(1) of the Criminal Procedure Code.

Section 293(1) of the Criminal Procedure code provides:

When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the legal practitioner for the prosecution or the defence may desire to submit, ... record a finding..... of not guilty.

The test to be applied is whether there is some evidence on all elements of the offence whether direct or circumstantial.

Defence submitted that there was no iota of evidence placed before court by the prosecution and that the evidence of the pathologist could not be relied upon.

Counsel for the State submitted that prosecution relies on circumstantial evidence. It was the position of the State that the only inference that could be drawn on the evidence placed before court is that the four accused persons caused the death of the deceased.

In this case prosecution led evidence to the effect that the 4 accused persons took the deceased in the van. The evidence placed was that they were taking the deceased to the police station.

The fatal injury caused to the back of head of deceased could have been occurred by a blunt object like a piece of wood or any hard object like even a rod or a pipe or a similar object according to the evidence of the pathologist.

I am of opinion that the acceptance of the evidence in the light of the apparent inconsistencies in the evidence of the pathologist on the estimated time of death is a matter for the assessors to decide.

Cautioned Interview of the accused persons were admitted in evidence with agreement of both parties and it is evident that the accused persons carried a knife and a piece of wood and a torch in the van.

The prosecution case rests solely on circumstantial evidence. I find the inferences to be drawn from the evidence placed is for the assessors and not for the judge at this stage of the case.

The defence urged the court to consider the principles considered in State v Kapoor (1996) FJHC 111 case.

In that case the court found that the quality of the prosecution’s identification evidence was so riddled with falsity, inconsistencies, discrepancies and exaggerations and no reasonable tribunal could convict the accused.

That was the test to be applied as enunciated in case Galbraith (1981) 1 ALL E.R. 1060.

In this case prosecution relies on circumstantial evidence as mentioned above and it is my view that it is a matter for the Assessors to decide on the credibility of the witnesses and to draw the proper inferences from the facts placed before court.

Therefore I find that the 4 accused persons have a case to answer.

Priyantha Fernando
Puisne Judge
30/06/2010